Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Maman [2024] NSWCATOD 165 Hearing dates: 17-18 June 2024, closing submissions 5 July 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Occupational Division Before: E Bishop SC, Senior Member J Harrington, Senior Member A Bizzotto, Senior Member J Sillince, General Member Decision: (1) The respondent's registration is cancelled under the National Law, s 149C(1)(b). (2) The respondent cannot seek a review of Order 1 before 12 months from the date of these orders. (3) The respondent is prohibited from providing "health services" as defined in s 4 of the Health Care Complaints Act 1993 for 12 months from the date of these orders. (4) The respondent is to pay the applicant's costs as agreed or assessed under the National Law, cl 13 of Sch 5D. Catchwords: HEALTH — professional registration and discipline — registered nurse — unethical or improper conduct — inappropriate professional boundaries — inappropriate personal relationship with patient — whether unsatisfactory professional conduct — whether professional misconduct Legislation Cited: Health Care Complaints Act 1993 (NSW), s 4 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 4, 139B, 139E, 149, 149C, cll 2, 13 of Sch 5D Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Collins [2021] NSWCATOD 132 Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Tsolis v Health Care Complaints Commission [2023] NSWSC 1599 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Abhigith Maman (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) NSW Nurses and Midwives' Association (Respondent) File Number(s): 2024/00061449 Publication restriction: Publication of the name of the patient is prohibited by an order made 1 March 2024 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). reasons for decision Introduction 1. The Health Care Complaints Commission ("Commission") has applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against the respondent ("Mr Maman"), a registered nurse. 2. The proceedings arise from allegations that Mr Maman has failed to maintain appropriate professional and personal boundaries with a vulnerable mental health patient ("Patient A") to whom he had provided care and treatment during her admission to the Wagga Wagga Base Hospital in the Mental Health Unit ("WBMHU"). In particular, he commenced a sexual relationship with Patient A after she was discharged. 3. A complaint was made about Mr Maman by the Murrumbidgee Local Health District ("LHD") to the Australian Health Practitioners Regulation Agency ("AHPRA") on 6 October 2022 ("the Complaint") and the Nursing and Midwifery Council ("Council"). A proceeding under s 150 of the National Law ("s 150 proceeding") was conducted on 17 October 2022 which resulted in a condition being imposed on Mr Maman's registration: not to work as a registered nurse until reviewed by the Council. The Complaint was referred to the Commission for investigation. 4. In the Application for Disciplinary Findings, the Commission makes two complaints. Complaint 1 is that Mr Maman is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. Complaint 2 is that Mr Maman is guilty of professional misconduct under s 139E of the National Law. 5. In his reply, Mr Maman denied having an inappropriate intimate relationship with Patient A during her admission to the WBMHU but otherwise admitted Complaints 1 and 2. 6. The parties requested the Tribunal deal with both Stages 1 and 2, that is, to make findings in respect of each complaint and to make disciplinary orders. Issues for determination 1. The issues requiring resolution in this proceeding are as follows: 1. Are we independently satisfied that the admitted particulars justify a finding of unsatisfactory professional conduct? 2. Are we independently satisfied that the admitted particulars either individually or cumulatively justify a finding of professional misconduct? 3. What are the appropriate protective orders in light of the evidence before us? 1. For the reasons set out below, we are comfortably satisfied that Mr Maman is guilty of unsatisfactory professional conduct and professional misconduct. We have decided that the appropriate protective orders are that his registration be cancelled with a non-review period of 12 months and that he should also be prohibited from engaged in the provision of "health services" for the same period. Materials before the Tribunal 1. The Commission relied on a bundle of documents (comprising 693 pages) and including transcripts from the s 150 hearing; a supplementary bundle (comprising 41 pages); a further supplementary bundle (comprising 37 pages); an evidentiary certificate; an Amended Complaint; a Chronology; and submissions dated 18 June and 28 June 2024. Included in the bundle were photographs of Mr Maman and Patient A naked in the bath and other photographs taken during the period of their relationship as well as numerous text messages between them. 2. Mr Maman relied on a bundle of materials including his statement dated 8 May 2024; reply to application dated 9 May 2024; self-reflection dated 9 May 2024; a curriculum vitae; continuing professional development documentation; a course outline for a course entitled Health Care Ethics; a reference from registered nurse Ms McGregor dated 8 May 2024; a supplementary bundle provided on 17 June 2024 which included emails from Mr Maman's clinical psychologist, Ms Elise Guymer and Mr Maman's psychiatrist, Dr Nikhil George, located in India. The relevant law 1. The disciplinary powers of the Tribunal are set out in Subdiv 6 of Div 3 of Pt 8 of the National Law, which powers may be exercised if (a) the Tribunal finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149. 2. The Commission bears the onus of proving the complaints against Mr Maman to the civil standard on the balance of probabilities. Schedule 5D, cl 2 of the National Law provides that the Tribunal is not bound by the rules of evidence, "but may inform itself of any matter in the way it thinks fit". The approach to findings of fact was explained by Harrison AsJ in Tsolis v Health Care Complaints Commission [2023] NSWSC 1599 at [93] as follows: "[93] While these proceedings are heard on a civil standard, when the Briginshaw test applies is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue. When the test is raised in the other grounds of appeal, this is the test that I have adopted throughout my reasoning." 1. The National Law mandates the main guiding principle in the exercise of any function under the National Law is that "the protection of the health and safety of the public must be the paramount consideration": see National Law, ss 3, 3A, 3B, 4. 2. The Tribunal's primary consideration in considering orders relating to Mr Maman's registration is therefore from the point of view of protecting the public (Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202), and as per the National Law, s 3A(2)(c): (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. A determination must be made by referring to the particular facts of the case, and by a consideration of what measures are necessary to ensure that the future behaviour of the practitioner is shaped in a way consistent with the protective goals: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34. 2. A further consideration for the Tribunal is the need to maintain professional standards, as stated by the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637: "Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession." Unsatisfactory professional conduct 1. Section 139B of the National Law provides a detailed list of behaviours that are covered by the term "unsatisfactory professional conduct" in relation to registered health practitioners in NSW. The relevant paragraph in regard to the complaint against Mr Maman is as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. "Unethical" and "improper" are not defined in the National Law. As submitted by the Commission, the Tribunal has considered their dictionary meanings in numerous cases. Relevantly, "improper" means not right or in accordance with propriety of behaviour; and "unethical" means contrary to moral precept, immoral or in contravention of some code of professional conduct. As noted in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65, "the term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground" (at [25]). It is the type of conduct which viewed objectively, would be regarded by a reasonable person as falling below the standards of conduct to be expected of practitioners in that it has a tendency to bring the profession into disrepute or reduce public confidence in the profession: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55]. Professional misconduct 1. The question whether Mr Maman is guilty of professional misconduct is a separate question. 2. Section 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA) ("Chen"). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20]. 2. The question for the Tribunal then, is whether the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances". Factual background 1. In 2014, Mr Maman completed a Bachelor of Science in Nursing at St John's College of Nursing, Kattappana, in India, and was first registered as a nurse in Australia on 7 February 2017. 2. Mr Maman commenced employment as a Registered Nurse ("RN") in December 2018 at the WBMHU. 3. On 24 March 2019, the practitioner completed training courses including about the Nurses and Midwives Board of Australia Code of Conduct ("Code of Conduct") which included content about maintaining professional relationships. 4. At the time of Patient A's admission in May 2021, Mr Maman had been employed at the WBMHU on a full-time basis for approximately two years and five months. 5. Patient A was an inpatient admitted due to suicide ideation, alcohol abuse and depression. The records for Patient A show she had previously been admitted by ambulance in March 2021 after significant traumatic personal events. In addition to increasingly abusing alcohol, she had taken an overdose of Valium seeking to end her life. Patient A had two sons who lived with her. 6. On 29 May 2021, Patient A remained a voluntary inpatient at MHU. Mr Maman worked the morning shift (7am-3:30pm) and met Patient A for the first time. There was a handover about Patient A at the commencement of his shift and he was allocated to Patient A's nursing care during his shift. Mr Maman had access to Patient A's records, and, as he said in cross-examination, his usual practice was to read some nursing and medical records, particularly the plan of care. 7. Mr Maman provided nursing care to Patient A, including administering her medication, conducting a mental health assessment, and recording progress notes. He had access to her medical records and was aware she was vulnerable, as he has admitted. 8. Medical records show that Mr Maman made observation entries throughout the day and took Patient A's vital signs. He also administered thiamine (Vitamin B1 supplement to replace deficiency due to alcohol use) and witnessed nursing staff administer Diazepam for alcohol withdrawal symptoms. 9. Mr Maman did a mental health assessment and documented it. He made a mental health Risk Re-assessment and made the following progress note: "Assessment of Risks… Suicide: moderate due to previous attempt Self Harm: moderate due to previous attempt Aggression/Violence: low Vulnerability/Harm from others: low Absconding: low Sexual Safety: low Substance Use Withdrawal: nil" 1. At 1:02pm, Mr Maman made another progress note: "Mental State Examination - on engagement with consumer Appearance … dressed in black jumper and jeans Behaviour… good rapport and eye contact Affect … reactive Mood … reports low in mood Speech …normal RTV Thought form …able to stay with the topic Thought Content … ongoing thoughts without any plans Perception … not seen responding Cognition & intellectual functioning … grossly orientated Insight & Judgement … limited. Attitude & engagement in care: compliant to nursing care." 1. At 2:09pm, Mr Maman made the following progress note (Nursing Engagement & Shift Summary): "Care Level: 2 Engagement Undertaken…common area Brief Mental State Examination …maintaining rapport. nil FTD some insight ongoing suicidal ideation, told she feels she does wants to wake up General Comment …patient wanting help with alcohol abuse and situation crisis told she is having trouble with her job due to covid having issues with work having struggle issues with managing finance. Kids are with parents. parents are supportive utilising diazepam for withdrawals stays in her bed space most timings." 1. On 30 May 2021, Patient A remained a voluntary inpatient at MHU. Mr Maman worked the afternoon shift (1:30pm-10pm). He was again responsible for Patient A's care during his shift and had access to Patient A's records. 2. Again, he made progress notes throughout the shift and did a mental health assessment of Patient A and documented it. At 9:16pm, he made another progress note (Nursing Engagement & Shift Summary): "Care Level: 3 Engagement Undertaken … common area Brief Mental State Examination … patient has been isolative in bed space , denies SI,TOSH,TOHTO [suicidal ideation, thoughts of self harm, thoughts of harm to others] low in mood pleasant and polite on engagement nil FTD General Comment … patient has been reasonable settled tolerating adequate amount of diet and fluids compliant with medication occupying time by watching movie on netflix and reading books." 1. At 9:18pm on 30 May 2021, Mr Maman completed an alcohol withdrawal assessment of Patient A. Just prior, Patient A had been administered Diazepam and thiamine. 2. Sometime before discharge, Mr Maman and Patient A talked about her cleaning business and discussed cleaning for his apartment. In cross-examination Mr Maman said he felt sorry for her because her business was struggling. 3. On 31 May 2021, Patient A remained a voluntary inpatient at MHU. Mr Maman worked the afternoon shift (1:30pm-10pm). At around 3:30pm, Patient A was discharged with a plan including drug and alcohol services, community mental health team, psychology referral and GP support and prescribed discharge medication (including Desvenlafaxine and Thiamine). 4. About a week after discharge, Mr Maman called or messaged Patient A and asked her to clean his unit. They exchanged messages and after a few conversations became friends. Patient A then visited Mr Maman's home. 5. On about 30 June 2021, a month after discharge, Mr Maman telephoned Patient A offering to give her his phone charger and arranged to visit her. He visited her house, had a conversation with her and then left. Mr Maman became closer to Patient A and they commenced dating. 6. A few days later Mr Maman telephoned Patient A and offered to give her advice about camping and arranged to visit her home again. When he went to her home they had a conversation for about 1-2 hours and then he left. 7. The following day, Mr Maman received a message from Patient A and messages were exchanged including Mr Maman's messages: as "long as we both feel the same way", "If time can make people close enough, then it's more pleasure" and "I think orgasm can vary due many things, situations, sensations, excitement, inhibition...". 8. On 5 July 2021, Mr Maman visited Patient A again at her house and had 1-2 alcoholic drinks with her and a sexual relationship commenced. They continued dating over the next few months including Mr Maman visiting Patient A's parents' holiday home. 9. Throughout this period, Mr Maman continued working shifts at the WBMHU and did not disclose his relationship with Patient A to any of his colleagues. He also participated in ongoing training including on the topic of staff self-care and wellbeing. 10. In December 2021, the relationship between Mr Maman and Patient A ended. 11. In about June or July 2022, Patient A called Mr Maman during the night. He called her the next day and exchanged text messages. In cross-examination he said he was concerned about her. He then visited her at her parents' home. 12. The relationship between Patient A and Mr Maman recommenced and lasted until about September 2022. For some of this period, Mr Maman and Patient Alived in the same premises. 13. At some point Mr Maman provided Patient A with an Apple Watch and Samsung phone, and communicated with her via SMS and Snapchat messages. 14. Throughout all of this time, Mr Maman worked shifts at WBMHU and did not disclose his relationship with Patient A to any of his colleagues. He also participated in ongoing training including completing several training modules on assessment of patients who may be suicidal. 15. When the relationship came to an end for the second time, Patient A made a complaint to the LHD and spoke to a counsellor about her relationship with Mr Maman. 16. On 5 October 2022, Patient A contacted the police and made a complaint about Mr Maman. The police contacted Mr Maman advising him that Patient A wanted no further contact and that he should not contact Patient A. 17. On 6 October 2022, Mr Maman received a notification of the complaint from the LHD. Despite the warnings not to contact Patient A, there was the following text message exchange: Mr Maman: "… I need to speak to u" Patient A replied with a thumbs up symbol Mr Maman: "Can I please come talk to u when ur free" Patient A: "What about" Mr Maman: "Something happened at work, I feel like killing myself" Patient A: "Wtf Don't say that plz" 1. Patient A contacted the police again and spoke to a LHD counsellor on the phone. 2. On 11 October 2022 at about 9:40am, Mr Maman attended the rear of Patient A's premises and began apologising and asking for forgiveness. She subsequently contacted the police again and spoke to the LHD counsellor. 3. At about 5:19pm, Mr Maman received a call from the Council reminding him not to contact Patient A. He received a call from Patient A asking whether he had passed by her house. He denied it and told her that he had been told not to have any contact with her. 4. On 12 October, Mr Maman was informed he would be required to attend a s 150 hearing. The next day he completed continuing professional development revising the Code of Conduct, revising the RN Standards of Practice, completing sexual Safety Policy training and completing IDMH-10 Consent, decision making and privacy training. He also spoke to the LHD phone counsellor. 5. On 15 October 2022, Mr Maman prepared a Reflection for the Council, including an acknowledgement that a nurse should never enter into a sexual relationship with a person who they have provided care for, even when the person has been discharged. On the following day he sent a resignation email to the LHD. 6. Subsequently, while Mr Maman declined to provide a response to the correspondence about the investigation by the Commission, on 10 May 2023, he participated in an interview with the Commission and admitted his conduct. In his statement to the Tribunal on 8 May 2024, he also admitted his conduct. Patient A 1. There is no dispute that Patient A was at all relevant times vulnerable. When the relationship between Patient A and Mr Maman commenced, Patient A: 1. had recently been discharged from the MHU on 31 May 2021 after inpatient mental health treatment for abusing alcohol and attempting suicide; 2. had lost her home in a fire, had limited finances and was a single mother to two children with behavioural issues; and 3. suffered with a history of alcohol abuse, depression and suicidal ideation. 1. Mr Maman did not dispute that she was vulnerable. However, we note that in cross-examination at one point he said he did not know she had alcohol use disorder. This appeared inconsistent to his acknowledgement that while she was an inpatient, he accessed her medical records, had personally administered thiamine to her as a treatment for alcohol disorder and was aware of her various conditions. Consideration of the Complaints Complaint 1 1. The particulars of Complaint 1 are: "1. In or about June 2021 until December 2021, the practitioner engaged in an inappropriate intimate relationship with Patient A in circumstances where: a. The practitioner had provided care and treatment to Patient A during her admission to WBMHU. b. Patient A was vulnerable. 2. In or about July 2022 until September 2022, the practitioner resumed his inappropriate intimate relationship with Patient A in circumstances where: a. The practitioner had provided care and treatment to Patient A during her admission to WBMHU b. Patient A was vulnerable. 3. The practitioner acted contrary to: a. Part 4.1 (d) of the Nurses and Midwives Board of Australia, NMBA) Code of Conduct for Nurses (March 2018 version); b. Standard 2 of the NMBA, Registered Nurse Standards of Practice (June 2016 version)." 1. As noted above, Mr Maman admitted in writing Complaint 1 and each of particulars 1-3. In any event, we are comfortably satisfied on the materials before us that Mr Maman's conduct was improper as not in accordance with the behaviour expected of an RN but also that his failure to maintain professional boundaries and to engage in a sexual personal relationship with a former patient was improper and unethical including as contrary to the Code of Conduct. 2. Mr Maman knew when he was registered as a nurse that he was obliged to comply with Standard 2 of the NMBA Registered Nurse Standards of practice (June 2016). That standard provided: "The registered nurse establishes, sustains and concludes relationships in a way that differentiates the boundaries between professional and personal relationships." Further, when he commenced working as a RN at WBMHU, he agreed to be bound by and comply with the Code of Conduct including Part 4.1(d) which requires an RN to avoid sexual relationships with a person with whom they have previously entered into a professional relationship. He had induction training, understood that crossing boundaries was a violation of Code and that intimate relationships with patients to whom he provided care was not permitted. Mr Maman's conduct was contrary to both Part 4.1 (d) of the Code of Conduct and also Standard 2 of the NMBA Registered Nurse Standards. 3. We also find that Mr Maman's conduct was both improper and unethical as he breached the trust of Patient A who was particularly vulnerable due to the various conditions she suffered. This should have been particularly apparent to him given he had cared for her when she was a patient at WBMHU. It is particularly abhorrent that, despite his knowledge that Patient A suffered from an alcohol use disorder, he took alcohol to her home for them to drink. This was on the same occasion that they had sexual relations for the first time. We do not accept his assertion that he was unaware of her disorder. 4. Further, at the time of discharge, Mr Maman knew or should have known that if Patient A's mental health deteriorated in future, she would present to emergency to be admitted to WBMHU again. As he continued working at WBMHU it is highly likely he would have been her nurse again in the future. In this regard we note that the MHU is in a relatively small regional area with little to no other option for admission elsewhere for treatment. This placed Patient A at a particular disadvantage or vulnerability with respect to Mr Maman. This is conduct which fell well below the standards of conduct to be expected of RNs. 5. Consequently, we are comfortably satisfied on the materials before us that Mr Maman is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law in respect of Complaint 1. Complaint 2 – professional misconduct 1. Regarding Complaint 2, the Commission relies on the particulars in Complaints 1 either individually or cumulatively. Again, Mr Maman admits he is guilty of professional misconduct. 2. The Commission submits that the conduct in Complaint 1 is conduct that, when the particulars are considered alone or together, is of a sufficiently serious nature to justify cancellation because: "a. the practitioner must have known the importance of maintaining professional boundaries (he was a registered nurse in Australia since February 2017, he had been working as a full time registered nurse since June 2017 and he had been working full time at the MHU since December 2018); b. nurses must actively manage the patient's expectations and be clear about professional boundaries that must exist (but sometime before discharge, the practitioner talked about the patient's cleaning business and discussed cleaning for his apartment, then later saved her phone number, contacted her and discussed personal topics); c. nurses must recognise the inherent power imbalance that exists between nurses and people in their care and establish and maintain professional boundaries (but the practitioner commenced an inappropriate intimate relationship with a vulnerable patient soon after she was discharged); d. nurses must avoid sexual relationships with persons with whom they have previously entered into a professional relationship (but the practitioner's conduct progressed from discussing personal topics, inviting her to his home, personal calls/messages, visiting her home, moving into her home and then starting a sexual relationship); e. nurses must recognise when over-involvement has occurred, and disclose this concern to an appropriate person and nurses should examine any boundary‑crossing behaviour and seek assistance from their colleagues and supervisors when such crossings occur (but the practitioner did not disclose his relationship with the patient to any colleagues at the hospital); f. when something goes wrong, nurses must seek advice from their employer, AHPRA, their professional indemnity insurer or other professional bodies if they are unsure about their obligations (but the practitioner did not seek advice, notwithstanding that he had a good working relationship with his employer, he had access to professional resources and he could have sought guidance from another experienced registered nurse, his insurer or his professional organisations); g. nurses must reflect on the circumstances surrounding any occurrence of over-involvement, document and report it, and engage in management to rectify or manage the situation (but, rather than reflecting on the circumstances surrounding his over-involvement in 2021, the practitioner resumed his inappropriate intimate relationship in 2022); h. in order to maintain professional boundaries, there is a start and end point to the professional relationship, and it is integral to the nurse-person professional relationship (but the practitioner engaged in an inappropriate intimate relationship soon after discharge which continued for about 6 months and then later resumed for about 2 months); i. adhering to professional boundaries promotes person-centred practice and protects both parties (but the practitioner's conduct posed a risk of harm to Patient A and jeopardised the therapeutic relationship); j. the practitioner continued his inappropriate intimate relationship with Patient A during two periods (June-December 2021 and July-September 2022), notwithstanding that he continued to be employed by the LHD to work at the MHU over that time, notwithstanding that Patient A was participating in community mental health consultations and alcohol counselling provided by the LHD over that time (consistent with her MHU discharge plan) and notwithstanding that, if her condition deteriorated, she would likely require another admission to the MHU where the practitioner worked." 1. We agree with each of the Commission's contentions. 2. We regard the behaviour of Mr Maman – specifically having an inappropriate relationship with Patient A over two separate periods of time as being a most serious matter. This is particularly so given his knowledge, as a nurse who treated Patient A, of her particular vulnerabilities and who, we find, took advantage of Patient A. Mr Maman should have known that a relationship with Patient A would or at least could cause significant harm to Patient A. 3. On the evidence it appears Mr Maman improperly and deliberately pursued Patient A, despite knowing of her mental health issues and that it was a breach of his professional boundary obligations to engage in such conduct. 4. When considered in the aggregate, the particularised conduct amounts to conduct of a sufficiently serious nature to justify cancellation of Mr Maman's registration (pursuant to National Law, s 139E(b)). Consequently, we find that Mr Maman is guilty of professional misconduct. Complaint 2 is established. What if any disciplinary orders should be made? 1. Having established each of complaints, the parties have requested the Tribunal to determine the second stage, that is, what protective orders should be made. 2. The disciplinary powers available to the Tribunal where a complaint is found proven are contained in Part 8, Div 3, Subdiv 6 of the National Law. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case, the Tribunal is satisfied the practitioner is guilty of professional misconduct, the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration: s 149C(1) of the National Law. 3. Justice Wright in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of the orders in Pt 8, Div 3, Subdiv 6: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]." 1. The Commission seeks orders from the Tribunal under the National Law, s 149C(1)(b) to cancel Mr Maman's registration with a non-review period of two years under s 149C(7). The Commission also seeks an order under the National Law s 149C(5) that Mr Maman be prohibited from providing any health service for that same two year period. 2. The Commission's submissions set out the reasons in support of a two year non-review period as follows: a) a 2 year period is needed to protect the public (the practitioner breached professional boundaries with a recently discharged vulnerable mental health patient so public and professional confidence cannot be reposed in him practising as a registered nurse for at least a 2 year period); b) a 2 year period is needed to protect the public from similar misconduct of others and uphold public confidence in the standards of the profession (the practitioner engaged in serious misconduct so a 2 year period will send a strong message, to him and other nurses, that such conduct cannot be condoned); c) a 2 year period is needed for the practitioner to demonstrate that he has completed rehabilitation (the practitioner attended 4 consultations with a psychologist since October 2023, initially avoided dealing with his issues, provided limited information to his psychologist, and the Tribunal cannot be satisfied that he has sufficiently engaged in treatment and addressed his risk factors); d) a 2 year period is needed for the practitioner to complete any necessary further education (noting that the practitioner had already completed induction training before his conduct, he already understood there were policies about when the appropriate boundary has been breached, he had recently already completed training before his conduct (about Clinical Governance and Safer Mental Health Services), he continued to complete further training during his conduct (about Open Disclosure, Staff Wellbeing, Suicide Assessment and Suicide Prevention), he completed further training after the complaint (including revising the Code of Conduct and completing Sexual Safety training), he claims he will start further training on 28 July 2024 (but there is no evidence regarding whether he has enrolled and whether/how any further learning will address his risk factors); e) a 2 year period is needed for the practitioner to demonstrate that he has gained genuine insight because his interview shows limited insight: i) when asked if he thought he was crossing a professional boundary by having a sexual relationship, he did not know how to respond, stating he wanted a relationship with her and didn't think he has done any harm, ii) when asked about whether he would have been in trouble if his employer had found out, he did not know how to respond, stating he didn't really think about it at that time, iii) when asked why he didn't reflect on boundaries when he first had sexual intercourse with the patient, he stated that he didn't reflect on himself and put it out of his mind because he was in love with her) iv) when asked about the rules about having a sexual relationship with a former patient, he stated 'I didn't, like, intentionally want to have a relationship with the patient … it just happened … I just thought of, like, this professional boundary could be broken'. and because his Tribunal reflection also shows limited insight (asserting he 'inadvertently' crossed his professional boundary and claiming that in 'hindsight' dating her was poor judgment but he actually already knew at the time that an intimate relationship was not allowed)." Prohibition order 1. The Commission seeks a prohibition order because the practitioner poses a substantial risk to the health or safety of members of the public. While the phrase "substantial risk" is not defined in the National Law, the Tribunal has considered it is a risk that is material and real or apparent on the evidence and not a risk that is without substance or speculative. Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]; Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 at [18]; Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [97]. The question of whether a person poses a substantial risk to the health or safety of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services: Menz (No 2) at [19]; Health Care Complaints Commission v De Lore [2020] NSWCATOD 72 at [93]. 2. The Commission submits that Mr Maman engaged in inappropriate conduct over a lengthy period so there is a risk he may engage in inappropriate conduct with female patients as an unregistered health practitioner in future. It is contended that while he has been working in a "non-nursing role", he could use his nursing training to seek work as an unregistered health practitioner working with vulnerable patients with limited oversight (such as aged carer, assistant in nursing or disability worker). The fact that he engaged in risky conduct as an RN including befriending, drinking alcohol and having sexual intercourse with a patient who had alcohol and mental health issues soon after she was discharged, means he may take risks and befriend female patients when working as an unregistered health practitioner in future. Further, it is contended that according to Patient A, Mr Maman engaged in harassing behaviour in particular: 1. on 30 September 2022, she alleged that the practitioner was stalking her; 2. on 5 October 2022, she contacted police and police contacted the practitioner advising of her wishes for no further contact or relationship; 3. on 6 October 2022 (after he had been notified of the patient's complaint) the practitioner messaged her that he needed to speak to her and felt like killing himself; 4. on 11 October 2022 (after apparently attempting to contact her by phone) the practitioner attended the rear of her home; 1. The Commission says that if Mr Maman was permitted to provide health services during the period when his registration is cancelled, it would substantially undermine the protective purpose of that order. 2. Mr Maman however seeks more "meaningful, constructive and relevant" orders. As such he seeks a reprimand; or, if the Tribunal is minded to cancel, that the non-review period be for 6-12 months; or if the Tribunal considers suspension appropriate, that the suspension be for 6-12 months with conditions for ongoing counselling by a psychologist and mentoring. 3. Mr Maman submits that he made admissions as soon as he was able to in regard to his conduct; and once he was aware a complaint had been made he undertook continuing professional development ("CPD") to gain a better understanding of the relevant, and fundamental codes and standards of his profession. He has engaged in CPD on the "legal and ethical aspects of nursing" to give him a "better understanding of reflective practice". He states that he will be applying to the Australian Catholic University for the course PHIL623 – "Healthcare Ethics: Principles in Practice". 4. According to Mr Maman's submissions, he has developed insight into how the relationship occurred and has demonstrated remorse for it. 5. In cross-examination Mr Maman said that he has been reflecting and can see how his actions have caused great distress for Patient A and that he takes responsibility for his actions. He said he was angry and ashamed of his actions and how it impacted her. He said he recognises now that if he had just had a single conversation with his manager about the relationship none of this would have happened and that he does not know why he did not do that but realises it is a decision that has changed his life. 6. He has engaged Ms Elise Guymer, a psychologist, who provided the Tribunal with a written statement and gave oral evidence supporting Mr Maman's claim. Ms Guymer said that initially Mr Maman did not have good insight and saw himself as a victim but with all the readings and discussions he has started to become more aware of what crossing professional boundaries can cause. She said that in her opinion, he "muddled" into the relationship rather than targeting Patient A in a predatory way. She said she had talked to Mr Maman about the incident "over several sessions in a significant amount of detail and highlighted the different points where he could have made better and more ethical choices. She is now of the belief that Mr Maman knows what he did was wrong, what to do differently next time and the impact that this has had on his victim." 7. Mr Maman has also engaged Dr Nikhil George, a psychiatrist, with whom he has met 10 times and who also provided a letter in support of Mr Maman. Dr George is based in India and was not cross-examined. 8. Mr Maman's colleague, Jill McGregor, provided a reference in support. She was his supervisor for some period of time before she went on maternity leave. She said in cross-examination that he is trustworthy, dedicated and always demonstrates a high level of commitment to his patients. She said she was completely shocked when he told her about his conduct for which he expressed deep shame and remorse and is trying to rectify the situation. She said that she was very happy to give him a reference and everyone makes mistakes and can only learn from these. She said he is a good man, always professional, great to work with and very compassionate. 9. We note in cross-examination, Mr Maman indicated that he has now relocated to be closer to family and friends in Victoria for support. He also said that in terms of strategies going forward he has learned "seeking professional help, speaking with colleagues, refreshing my knowledge and understanding, always a have self-reflection on yourself… I can speak to my psychologist for help." 10. Mr Maman expressed profound shame for his conduct. He said he has continued to reflect on his conduct and sees he lacked understanding of ethical principles, awareness of the boundaries and the power imbalance in the relationships. Consequently he undertook refresher courses and says that he has also sought to enrol in the Australian Catholic University course in "Healthcare Ethics: Principles in Practice" as showing his dedication to ensuring he has a deep understanding of ethics and the need for ethical reflection. 11. Maintenance of professional boundaries is an essential element in nursing, particularly mental health nursing, and Mr Maman's conduct demonstrates that he did not have an understanding of this, despite extensive training on the Code of Conduct and professional and ethical behaviour. To the contrary, Mr Maman's conduct demonstrated a blatant disregard for those professional boundaries and a lack of understanding or concern as to the particular vulnerability of Patient A. 12. While Mr Maman said he had learned a lot and certainly appears to now demonstrate some limited insight into the consequences of his conduct (as compared with when he first attended the s 150 hearing), we remain concerned about the extent of his insight. Of particular concern to us was his denial in cross-examination that certain text messages between him and Patient A related to orgasms in a sexual context. In context, he was attempting to maintain that at the time he entered into a relationship with Patient A, he did not understand boundaries – despite the education and training he had undertaken. When questioned by us about those text messages he said that they were not sexually explicit messages but rather messages about an alcoholic drink called an Orgasm. When the messages are read as a conversation (part of which is set out at [42] above), it is clear that he and Patient A were discussing orgasm in a sexual context and we do not accept his explanation. Mr Maman's denial shows that he continues to attempt to minimise his conduct and we are not satisfied that he has demonstrated sufficient insight to deal with the risk factors that otherwise remain to the public if he continues to practice as a RN at this point in time. Having regard to the paramount consideration under the National Law, the protection of the public, we consider that at this time, if he were to be involved in the provision of health services as an RN he would pose a substantial risk to the health of the public. We have particular concern about Mr Maman providing services to mental health patients who are extremely vulnerable. Consequently, we consider it appropriate to order that Mr Maman's registration as an RN be cancelled. 13. Our concerns about Mr Maman being a substantial risk to the public extend to the provision of "health services" (as defined in s 4 of the Health Care Complaints Act 1993 (NSW) such as aged care or disability support services. We have decided that during the period of his cancellation he also be prohibited from providing any health services. 14. While we find that at the present time Mr Maman poses a substantial risk to the public, we do not agree with the Commission that a period of two years before he can seek re-registration is appropriate in this case. 15. Mr Maman has taken steps to rehabilitate and take responsibility. He has commenced counselling and we accept the evidence of his psychologist that he is now starting to understand the gravity of what he has done. However, we also note that at the time of the hearing, he had only had four consultations and had providing the psychologist with limited information for her to know whether he would engage in this conduct again. Further, although Mr Maman asserts that he will undertake further study at the Australian Catholic University, the evidence was that he had made enquiries and that enrolment could not occur until the second half of this year. In any event, he has done copious amounts of further education and training already and has learned the principles underpinning the Code of Conduct and relevant Standards: it is now a matter of whether he understands them and can put them into practice. This is a matter we are unable to be satisfied of on the evidence. We accept he is ashamed and remorseful for his conduct but we were unable to be satisfied on the evidence that his shame and remorse is a result of genuinely understanding why it was wrong to engage in a sexual relationship with Patient A and the impact this has had on her, compared to being severely ashamed because he had been publicly exposed. 16. Overall, a period of 12 months before Mr Maman can seek re-registration is "both appropriate and adequate for both specific and general deterrence". This will enable him to continue to work with the counsellor and also other remedial steps such as undertaking further education as he has indicated he wishes to do. Noting the period of time that has already passed that he has been suspended from practice as an RN, the steps he has already taken, including further education and counselling, we consider a cancellation period of 12 months will give Mr Maman an appropriate amount of time to continue to get the help he needs and gain insight into the effect of his conduct. Costs 1. The Commission seeks an order for costs as agreed or as assessed. In exercising the power to award costs under the National Law, cl 13 of Sch 5D the general rule is that costs follow the event unless there has been disentitling conduct on the part of the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 2. Mr Maman does not dispute that the order should be made. 3. There is no suggestion that there has been some "disentitling conduct" by the Commission in these proceedings and we have decided to exercise the power to order Mr Maman to pay the Commission's costs, as agreed or assessed. ORDERS 1. We make the following orders: 1. The respondent's registration is cancelled under the National Law, s 149C(1)(b). 2. The respondent cannot seek a review of Order 1 before 12 months from the date of these orders. 3. The respondent is prohibited from providing "health services" as defined in s 4 of the Health Care Complaints Act 1993 for 12 months from the date of these orders. 4. The respondent is to pay the applicant's costs as agreed or assessed under the National Law, cl 13 of Sch 5D. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2024